Change We Can Believe In, XXIX

Change We Can Believe In: Presidential Assassinations With No Judicial Review

I have used this series several times to make the point that President Obama, rather than reversing the Bush-Cheney administration’s assault on the rule of law, has continued and codified it, turning the illegal into the bipartisan norm. Last Monday, on behalf of Obama, Attorney General Eric Holder took the next step down this now well trodden road. In his NYT coverage, Charlie Savage wrote that Holder

asserted on Monday that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

“Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack,” Mr. Holder said in a speech at Northwestern University’s law school. “In that case, our government has the clear authority to defend the United States with lethal force.”

While Mr. Holder is not the first administration official to address the targeted killing of citizens — the Pentagon’s general counsel, Jeh Johnson, did so last month at Yale Law School, for example — it was notable for the nation’s top law enforcement official to declare that it is constitutional for the government to kill citizens without any judicial review under certain circumstances. Mr. Holder’s remarks about the targeted killing of United States citizens were a centerpiece of a speech describing legal principles behind the Obama administration’s counterterrorism policies.

It’s worth keeping in mind one thing Holder did not do, which was to make public the memo that David Barron and Martin Lederman, as members of the Justice Department’s Office of Legal Counsel, prepared to justify the White House decision to kill US citizen Anwar al-Awlaki in Yemen last September by a drone strike. As Scott Horton concludes in his analysis of Holder’s speech, “If America is truly sticking to her laws and values, then she should have no difficulty exposing her policies to public scrutiny.” And administration officials have yet to provide any explanation for the assassination two weeks later of al-Awlaki’s 16-year-old son Abdulrahman.

As for the use of the word ‘assassination’, Holder objected, arguing that such operations “are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful—and therefore would not violate the Executive Order banning assassination or criminal statutes.” Turning to Horton again for analysis, we learn that

Holder was referring specifically to Executive Order 13222, issued by President Ronald Reagan in 1981, which says, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” But as with so much U.S. national-security legislation, this order turns out to be far less than meets the eye. Simplified, the present law of EO 13222 could be summarized this way: “No one shall be assassinated—unless the president authorizes it, in which case we will refrain from calling it an assassination.”

I could go on, but it’s too discouraging. See instead the lead editorial in today’s NYT.

See also digby’s post yesterday, in a different context, on Obama and civil liberties. I’ll end with an excerpt:

I think you have to take [Obama] at his word and accept that what he’s done in this realm in the past three years was done because he believes they are “what works.” The problem is that “what works” doesn’t always comport with our values and our beliefs. (And none of this is to say that any of it necessarily “works” either, simply that the government obviously believes it does.)

That’s one of the reasons we have a constitution and a set of ideals to guide us. Solely depending on “what works” naturally leads to authoritarianism … After the policies of this first term, making respect for civil liberties and a lasting humane national security policy part of his legacy is going to be a very tough row to hoe because they reflect values of such transcendent importance. “What works” is very often the opposite of the values we supposedly hold dear — you either believe in them or you don’t. And for the last three years, it’s been the latter.